Reid v. Lowden

• Court: Louisiana Supreme Court
• Writing for the Court: PONDER, Justice.
• Citation: Reid v. Lowden, 192 La. 811, 189 So. 286 (La. 1939)
• Decision Date: 01 May 1939
• Docket Number: 35231.
• Parties: REID v. LOWDEN et al.

189 So. 286

192 La. 811

REID v. LOWDEN et al.

No. 35231.

Supreme Court of Louisiana.

May 1, 1939

Certiorari or Writ of Review, to Court of Appeal, Parish of Evangeline.

Action for personal injuries by William H. Reid against Frank O Lowden and others, trustees of the Chicago, Rock Island &amp Pacific Railway Company. A judgment of dismissal was affirmed by the Court of Appeal, 185 So. 100, and the plaintiff applies for certiorari or writ of review.

Affirmed.

Dubuisson & Dubuisson, of Opelousas, for plaintiff.

Barksdale, Warren & Barksdale, of Ruston, for defendants.

PONDER, Justice.

The plaintiff seeks to recover from the Chicago, Rock Island and Pacific Railway Company, in bankruptcy, the sum of $42,900 as damages for injuries he received on November 1, 1935 while operating a motorcar as a section foreman of the railroad company. It appears from the plaintiff's petition that about one and a half miles above Reddell, Louisiana the tracks of the defendant company are crossed by a concrete paved highway. At the time the plaintiff received the injuries complained of he was operating a motor-car over the defendant's track. When the plaintiff reached the point where the highway crossed the defendant's track he was run into and struck by an automobile truck owned by the Gulf Refining Company which was crossing the railway track on the highway at a high rate of speed. The plaintiff alleges that the defendant company did not have a proper ‘ stop’ sign at the crossing to warn the traffic on the highway of the presence of the railway crossing. It appears from the petition that the road master, defendant's agent, was informed that there was no ‘ stop’ sign at this crossing some two months prior to the accident. At the time of the accident it appears that there was no such sign at the crossing. The lower court sustained a plea in bar interposed by the defendant and the plaintiff appealed to the Court of Appeal for the First Circuit. The Court of Appeal affirmed the judgment of the lower court sustaining the defendant's plea in bar. This case comes to us on writ of review and certiorari.

An examination of the record shows that on the trial of the plea in bar the following instrument was introduced and filed in evidence:

‘ Receipt and Release in Full and Final Compromise Settlement.

‘ Received of Gulf Refining Company of Louisiana, the sum of Three Thousand Two Hundred & No/100 Dollars ($3200.00) in hand to me this day paid, receipt of which is hereby acknowledged. In consideration of the sum so paid I have this day forever released and discharged Gulf Refining Company of Louisiana, its contractors, employees, representatives and assigns, hereinafter called the Company, of and from any and claims for damages of whatsoever character which I have or may have had or which I may have as a result of personal injuries sustained by me on or about November 1st, 1935 at or near what is commonly called Y crossing about one mile north of Reddell, Louisiana, when a motor car on which I was riding figured in a collision with a Ford truck said to be property of the said Company.

‘ I fully understand that the Company expressly denies liability in the premises. I contend that the Company is liable to me in damages as a result of the aforesaid collision.

‘ I understand this to be a full and final compromise settlement and I am accepting the money herein paid knowing that I will be effectually barred from making further claim or claims against the said Company as a result of the injuries sustained by me whether the same are manifest at this time or not.

‘ I have read this instrument and understand it to be a full and final release in compromise settlement, and have signed it on this, the 22nd. day of January, 1936.

‘ (Signed) W. H. Reid

‘ Witness:

‘ (Signed) R. E. King

‘ (Signed) J. P. Reid.’

It is contended by the plaintiff that the Court of Appeal erred in holding that the release of one who is claimed to be a tort-feasor without a reservation against another who is claimed to be a co-tort-feasor releases the latter prior to a judgment of court condemning the two as solidary tort-feasor-obligors.

Article 2324, R.C.C., reads: ‘ He who causes another person to do an unlawful act, or assists or encourages in the commission of it, is answerable, in solido, with that person for the damage caused by such act.’

It is well settled that joint tort-feasors are solidarily liable for damages resulting from their concurrent negligence or wrong doing. Owen v. Brown, 13 La.Ann. 201; Irwin v. Scribner, 15 La.Ann. 583, 584; Orr & Lindsley v. Hamilton, 36 La.Ann. 790; Rathborne Lumber Co. v. Cooper et al., 164 La. 502, 114 So. 112; Gardiner v. Erskine et al., 170 La. 212, 127 So. 604; Quatray v. Wicker et al., 178 La. 289, 151 So. 208.

Article 2203, R.C.C., provides:

‘ The remission or conventional discharge in favor of one of the codebtors in solido, discharges all the others, unless the creditor has expressly reserved his right against the latter.

‘ In the latter case, he can not claim the debt without making a deduction of the part of him to whom he had made the remission.’

Article 2203 applies to obligations ex delicto as well as to obligations ex contractu. Owen v. Brown, supra; Irwin v. Scribner, supra; Orr & Lindsley v. Hamilton, supra.

The cases of Irwin v. Scribner, supra, and Orr & Lindsley v. Hamilton, supra, answer plaintiff's contention. In both of those cases the release or discharge was granted prior to judgment and it was held that the other joint tort-feasors were discharged. The underlying principle being that there is but one debt and hence there can be but one satisfaction of it.

It is stated in Orr & Lindsley v. Hamilton, supra:

‘ The plain and unambiguous language of the Code does not warrant the distinction invoked, which is practically a distinction without a difference. Each wrong-doer is responsible for the full amount of the damages suffered; and any amount paid by one of them on the score of damages

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